Be sure to share your comments in the Class Participation section below -- that's the best part!
You can turn pages with the arrows on your keyboard ← →.

Buy the books on Amazon
Support the Illustrated Guide on Patreon!
Join the conversation!
There are now 40 comments... what are your thoughts?
  1. Gregory T. Bogosian says

    The problem with just going by precedent is that it makes the constitution superfluous. If the constitution determines what the government can and cannot do. But the meaning of the constitution is determined by judicial precedent, then why even have a constitution? Why not just have judicial precedent determine what the government can and cannot do?

    • Except the text is always the foundation of the precedent.

      Perhaps a better criticism of yellow box’s common-law precedent argument is that it only pretends to answer anything! It’s obviously what the courts do, but where is its guidance on how they should do it? And anyway, the precedential weight of any given rule may depend largely on how much court B thinks court A’s approach was valid.

      There is a LOT to argue about on these pages. And more when we get to the (short) chapter on the courts. I’m not telling what I think, not yet, but I’m really keen to see what everyone else has to say!

      • I was wrong. Thank you for bringing my attention to that. Another problem with the common-law precedent argument is that the supreme court does overturn precedents from previous supreme courts occasionally. You cannot use the common-law precedent argument to analyze those cases, that would be circular.

  2. The Supreme Court is an institution, and they do what all institutions do, and what they should do: use the tools they have available to solve the problems they encounter.

    I was a computer programmer in my former life (and a college mathematics and economics instructor in my current life); With apologies to uncle Douglas, trying to find the right answer in mathematics or computer science is almost, but not quite, entirely unlike the law.

    I don’t think there’s a sold math-like or programming-like answer about how we should interpret the constitution (or precedent, or law); there is just how we presently do it, and pressures different people in different roles can bring to bear to change how we might do it in the future.

    Lenin made an important point in The State and Revolution: there is no institution that can stand outside society, and offer an “objective” perspective; all societal institutions stand inside society, and respond to the social, political, and economic pressures of that society.

    • Leaving aside whether any one approach is preferable, or can even be shown to be:

      Is there an argument to be made for at least picking a winner? For courts applying a uniform, consistent principle whenever they must interpret the constitution?

      Picking one doctrine (dogma?) and sticking to it might have benefits.
      Justice in predictability, avoiding arbitrariness, fewer hard cases making bad law, and whatnot. Would the benefits be beneficial enough?

    • “I don’t think there’s a sold math-like or programming-like answer about how we should interpret the constitution (or precedent, or law); there is just how we presently do it, and pressures different people in different roles can bring to bear to change how we might do it in the future.” I see the logic in that, the degree of precision and rigor that exits in mathematics has never existed in the law and probably never will. However, without an interpretive schema, making a persuasive case for the interpretation that you want to others suddenly becomes much more complicated. Interpretive schemas are themselves tools of changing society to something that you are more comfortable with by convincing judges to side with you in legal controversies. In other words, even if you don’t believe that there is a correct interpretation of the law, pragmatics still demand that you pretend that there is if you want to actually win any court cases.

      • Well, I’m not a lawyer, so I don’t care about winning court cases. As both a citizen of a (putative) democratic republic and as a social scientist, I care about where the law fits in our collection of social institutions.

        I guess my main argument is that How do we interpret the constitution? cannot be answered without the context of What do we want the constitution to do right here, right now?

        • Sorry. What I should have said is: Looking at the interests of all the parties involved and the tools available to them is great for predicting what the courts will do. However, if you want to critique what the courts do, then you must have an interpretive schema, or else your critique will be incoherent and unfocused.

          • Well, I mean by “we” everyone in society, not just the parties before the court. At the constitutional level, the actual parties and their interests are almost insignificant.

            I think I’m saying that which interpretive schema will do what we want it to do. Do I want or not want stuff like Lochner, Miranda, Dred Scott, Korematsu, etc.? Do I want the Court to decide this sort of thing to begin with, or leave it exclusively to the legislature? If I want the Court to decide, how should they decide these sorts of things? Then I pick an interpretive schema that gets the Court closer to what I want.

            If I am honest, I will argue this explicitly: I want the Court to do X, and schema Y gets me closest. If I were not so honest, I would hide my interests and argue on other grounds.

          • Let me be more specific.

            First, I’m a communist, so from that perspective, the entire U.S. legal system and its underlying philosophy is profoundly deficient. That being said, the U.S. is my home, so from the inside, I have to critique it as it stands.

            First, I can live with the Court getting it “wrong” (the way I don’t like) sometimes, because the right stuff (stuff I like) seems to stick, and they eventually reverse the wrong stuff. And the idea of juxtaposing highly educated gerontocrats against more-or-less democratically elected trustee representatives and executives seems to work itself out, regardless of what interpretive schema the gerontocrats employ.

            Second, I find Breyer more convincing than Scalia. A modern interpretation, carefully and thoroughly explained, seems to do more good than harm. I’m fine with saying that today’s Court considers abortion a privacy right under due process even if one could show decisively that neither the founders nor the late 18th century U.S. population believed no such thing. Those guys are all dead; they don’t have to live with their decisions, and I sometimes don’t want to live with their decisions. (And the original amendment process is today far too difficult and cumbersome to be of much use.)

            In any event, the constitution was written vaguely, presumably by design; hence, our constitution is much shorter than most others. For example: “cruel and unusual punishment”? WTF? These words lack all precision. If they meant, any punishment considered cruel and unusual by today’s standards, then why not enumerate them? As Nathan has shown, the men who wrote the constitution were neither stupid nor careless. It’s not like we’re trying to redefine “tail” so it means “leg”.

            • “First, I’m a communist, so from that perspective, the entire U.S. legal system and its underlying philosophy is profoundly deficient. That being said, the U.S. is my home, so from the inside, I have to critique it as it stands.” I also find the American legal system deficient. But, for different reasons. I would prefer something like the legal system that prevails in Britain or Sweden, where the legislature makes all the public policy decisions and the courts only exist to apply those policies to particular cases. That is why I object to consequentialist interpretations of the constitution and consequentialist jurisprudence in general. It can only work by usurping the power of our elected representatives. “First, I can live with the Court getting it “wrong” (the way I don’t like) sometimes, because the right stuff (stuff I like) seems to stick, and they eventually reverse the wrong stuff.” But that having been the case for a while doesn’t mean that it will always be the case. The Supreme Court could one day be packed with people whom you are ideologically opposed to in every way. If that happens, then you will want them to operate under an interpretive schema that constrains them somehow.
              “Second, I find Breyer more convincing than Scalia. A modern interpretation, carefully and thoroughly explained, seems to do more good than harm. I’m fine with saying that today’s Court considers abortion a privacy right under due process even if one could show decisively that neither the founders nor the late 18th century U.S. population believed no such thing. Those guys are all dead; they don’t have to live with their decisions, and I sometimes don’t want to live with their decisions.” Thank you for bringing my attention to that video. I actually found Scalia more convincing. If we are going to make “due process” an empty vessel that we fill with whatever the values of the time are, then those words and values should be defined by Congress, not the courts. Congress is in a better position to know the values of the time than the Supreme Court is because the justices on the Court serve life terms, whereas the members of Congress regularly stand for re-election. “In any event, the constitution was written vaguely, presumably by design; hence, our constitution is much shorter than most others. For example: “cruel and unusual punishment”? WTF? These words lack all precision. If they meant, any punishment considered cruel and unusual by today’s standards, then why not enumerate them?” Because then the list would have been too long. If you use your imagination, then you can think up countless punishments that would have been both cruel and unusual even by 18th century standards. “As Nathan has shown, the men who wrote the constitution were neither stupid nor careless.” But that could easily be an argument for using the amendment process that they painstakingly designed no matter how cumbersome it is instead of ignoring both it, and what they thought the constitution meant.

              • But, for different reasons. I would prefer something like the legal system that prevails in Britain or Sweden…

                I know exactly zero about the Swedish legal system, and I don’t know much about the British system, but Sweden is a hotbed of socialism, no? and Britain (AFAIK) doesn’t have a proper constitution.

                But why would you prefer these systems? What do they get you that our system doesn’t? I’m an historical materialist: I find abstractions unpersuasive: the abstract should come from the concrete, not vice versa.

                That is why I object to consequentialist interpretations of the constitution and consequentialist jurisprudence in general. It can only work by usurping the power of our elected representatives.

                This is by design. The Supreme Court explicitly took on the role of “usurping the power of our elected representatives” in Marbury.

                You do raise a good question: should the courts (sometimes) oppose and constrain the legislature and executive, or should they take a completely subordinate role? But that’s not the question at hand, and it hasn’t been since Marbury. The Supreme Court has that power, and it’s not giving it up any time soon. The question is how should they oppose and constrain the legislature and executive?

                The Supreme Court could one day be packed with people whom you are ideologically opposed to in every way.

                That’s happened in the past (e.g. Lochner); it’ll probably happen in the future. So what?

                If that happens, then you will want them to operate under an interpretive schema that constrains them somehow.

                First, no interpretive schema will do anything about that. I would actually prefer a system where I could lose than one in which I’m guaranteed of winning: as strong and well thought-out as they are, I am probably a bit more skeptical of my own political opinions as I am of others’.

                The Supreme Court is already constrained in that they cannot act; they can merely opine.

                And, in any case, being restricted means nothing. Restrictions are not abstract; they are concrete: the specific nature of the restrictions don’t just restrain, they direct. So: in what direction do non-consequentialist restrictions move the Court, and why would I want the court to move in that direction?

                If we are going to make “due process” an empty vessel that we fill with whatever the values of the time are, then those words and values should be defined by Congress, not the courts. Congress is in a better position to know the values of the time than the Supreme Court is because the justices on the Court serve life terms, whereas the members of Congress regularly stand for re-election.

                I don’t find that argument at all persuasive, especially today, with a plurality-losing president and a gerrymandered, corrupt Republican congress fairly obviously in the pocket of the plutocracy. Again: trustee representation by design does not represent the will of the people. And again, bourgeois left or right, the Supreme Court has done tolerably well, with a few big mistakes (e.g. Dred Scott and Lochner, since corrected, and Korematsu, which, hopefully, will not survive a second test) and some impressive wins (Miranda, Roe, Brown).

                Because then the list would have been too long. If you use your imagination, then you can think up countless punishments that would have been both cruel and unusual even by 18th century standards.

                Too long? Did the Constitutional Congress spend all their parchment money on booze? (I know, it’s in the 5th Amendment.)

                But that could easily be an argument for using the amendment process that they painstakingly designed no matter how cumbersome it is instead of ignoring both it, and what they thought the constitution meant.

                *shrugs* That’s not how it works today. Why should we change it? And we don’t ignore the amendment process, we just use other tools sometimes. And I still don’t know why you want us to constrain ourselves to what we think guys 200 years dead thought they meant.

        • To me, getting the results I would prefer today is not as important as maintaining the integrity of the process for the future. If the method used to achieve the desired results corrupts the process it leaves both the result and the institution suspect, as well as establishing precedent for using extraordinary methods to accomplish results I do not approve of.

          To me, the courts should be going strictly by what the Constitution and the statutes actually say. If what is written is not what we need, then change the laws; don’t reinterpret them via 9 unelected Justices. For example, the ‘cruel and unusual punishments’ arguments, to me, turn to a large part on the connective used. In order for a punishment to be prohibited, it needs be BOTH cruel and unusual. Therefore, if a punishment is utilized in many states it is not unusual and therefore needs be allowed.

          Unless we take up Humpty Dumpty’s position on words, they have a particular meaning and the words passed need to be the words followed.

          • … maintaining the integrity of the process… corrupts the process…

            First, I don’t know exactly what you mean by these phrases. What is the process, and what constitutes its integrity or corruption? Second, if you want to maintain the integrity of the process (whatever that actually means), then that’s a result you would prefer today.

            To me, the courts should be going strictly by what the Constitution and the statutes actually say. If what is written is not what we need, then change the laws; don’t reinterpret them via 9 unelected Justices. . . . In order for a punishment to be prohibited, it needs be BOTH cruel and unusual. Therefore, if a punishment is utilized in many states it is not unusual and therefore needs be allowed.

            Why? There is a difference between stating an opinion and offering an argument. What interests would such an interpretation further?

            Unless we take up Humpty Dumpty’s position on words, they have a particular meaning and the words passed need to be the words followed.

            Language is socially constructed: words don’t have meaning, we give them meaning. And no one is disputing what words the constitution contains; what is at issue is what they mean. And I don’t need to do anything: I do as I please.

            • “What is the process, and what constitutes its integrity or corruption?”

              The process is the method of governing laid down in the Constitution, whereby the Legislature makes the laws, the Executive enforces the laws passed by the Legislature, and the Courts interpret the laws passed by the Legislature and the enforcement policies laid down by the Executive. The Executive does not decide what laws to enforce, nor do they set policy unilaterally. The Courts do not create rights never found in the Legislative process, nor do they reinterpret laws based on what the Legislature meant to do; they go by what was actually written and passed. The Legislature does not abandon its responsibilities to unelected bureaus without number, or give the Executive permission to bypass themselves.

              “There is a difference between stating an opinion and offering an argument. What interests would such an interpretation further?”

              It furthers the interests of those who believe that allowing the process as described above to be bypassed leads to both disillusion with the entire system, and also sets up a precedent allowing those whose interests are not aligned with ours to also bypass the procedures and get their way. For example, the strong border people were appalled with Obama’s executive orders bypassing the Legislative right to set the rules, while the open border crowd are equally upset with Trump’s orders on the same subject. Neither Obama nor Trump were right; both should have used the Executive branch powers to enforce the laws currently on the books while using their influence to change them to laws more to their liking.

              • The process is the method of governing laid down in the Constitution, whereby the Legislature makes the laws, the Executive enforces the laws passed by the Legislature, and the Courts interpret the laws passed by the Legislature and the enforcement policies laid down by the Executive. The Executive does not decide what laws to enforce, nor do they set policy unilaterally. The Courts do not create rights never found in the Legislative process, nor do they reinterpret laws based on what the Legislature meant to do; they go by what was actually written and passed. The Legislature does not abandon its responsibilities to unelected bureaus without number, or give the Executive permission to bypass themselves.

                Can you cite the provisions of the constitution you’re referring to? Or are you interpreting it according to your own schema?

                It furthers the interests of those who believe that allowing the process as described above to be bypassed leads to both disillusion with the entire system…

                I don’t see one or another Supreme Court interpretive scheme as disillusioning anyone. This sounds like a very abstract and marginal concern.

                … and also sets up a precedent allowing those whose interests are not aligned with ours to also bypass the procedures and get their way.

                By “ours” you mean “yours”, and by “those” you mean people like me? I will ask you the same question as I asked Gregory: What are your interests, and how does the your reading of the constitution privilege them over mine?

  3. Leaving aside whether any one approach is preferable, or can even be shown to be

    The key word here is preferable.

    Is there an argument to be made for at least picking a winner?

    But who picks the winner, and why? (Remember, I’m a Marxist and an historical materialist.) The question is: where do I want society to go from here, and where do I push to (eventually) get it there? People pick schemes of interpretation not because there is a “right” scheme, but because that scheme will move society closer to where they want it to be.

    Society is a chessboard, where all the pieces are the players.

    Justice in predictability…

    We can have predictability by just changing slowly. The law seems pretty good at changing slowly, regardless of a particular interpretive schema.

    …avoiding arbitrariness…

    “Arbitrary”… now there’s a slippery word.

    fewer hard cases making bad law, and whatnot.

    You should know as well as I do that “hard cases make bad law” has nothing whatsoever to with some interpretive schema and everything to do the case-based structure of legal precedent, which is a much deeper issue.

    • The key word here is preferable.

      I almost said “better.” Caught it in the nick of time!

      (Remember, I’m a Marxist and an historical materialist.)

      Now I really regret not going with my original outline for this chapter. I loved it so.

      I was going to do a great big flowchart of how the Framers’ arguments all played out within the rubric of dialectical materialism! Without letting on that’s what I was doing!

      I couldn’t decide whether to make it so all the ideas were jigsaw pieces that fitted together to make a new shape for the next idea to meld with, dynamically piecing together the concept… or go instead with a Tetris-style build-and-delete thingamajig. Either way it was goddamn beautiful. (My wife’s vote was for the jigsaw puzzle, I thought Tetris was more like real life.)

      As we’ll see on the next page, I have ABANDONED MY BEAUTIFUL IDEA in favor of something that’s… probably best for all concerned.

      Still, I grieve.

      “Arbitrary”… now there’s a slippery word.

      Think of the pages I could waste invest on determining the point where any human, subjective judgement call crosses the line from “reasonable” to “capricious”! No, don’t think about them. At least, don’t let me think about them. I’ve got a fun chapter all teed up, in which I will make zero friends.

      You should know as well as I do that “hard cases make bad law” has nothing whatsoever to with some interpretive schema and everything to do the case-based structure of legal precedent, which is a much deeper issue.

      Right, it has everything to do with the abandonment of fundamental principle to achieve individual viscerally-desired results. (And I hope to delve very deeply into this once we hit individual rights.) My suggestion was that it’s an abdication that might be avoided, or at least made onerous, by requiring the explicit application of a fundamental principle.

      As to the much deeper issue, I tend to default to the realm of efficiencies, until pressed (or plied with ale). This is pure intellectual laziness on my part. My glib reasoning goes: Individual case-based justice is by its nature inefficient, but it’s actually so inefficient that at the large scale it causes overall injustice! Dramatic pause! Through nothing more than delay and cold bureaucratic obedience! And it also lends itself to the individual case-based injustice of hatred, revenge, and assholery. On the other hand, every bright-line “efficient” justice inevitably results in countless individual injustices at the margins, wherever judgement is sacrificed to rules. See, e.g., pretty much the entire section on Crim Pro. Personally, I now continue, I’d rather have at least a shot at individual justice, than deny it wholesale in the name of efficiency. But that only reveals my assumptions, and says nothing about whether they’re valid. After an ale or two, I might start reflecting on how real-life courtrooms too often conflict with my assumptions, and I may start getting… emphatic… that both paradigms can go to hell.

      • I was going to do a great big flowchart of how the Framers’ arguments all played out within the rubric of dialectical materialism!

        So you’re a bit of a Marxist, eh? Nice!

        Right, it has everything to do with the abandonment of fundamental principle to achieve individual viscerally-desired results.

        Well, I would frame it the opposite way: we refuse to abandon individual viscerally-desired results to supposedly “fundamental” principles. But what is a fundamental principle anyway? Perhaps just a principle that captures a large enough chunk of individual viscerally-desired results?

        I tend to default to the realm of efficiencies…

        I’m an economist, and I hate our profession’s obsession with “efficiency”. Personally, unless you can define some measure of efficiency as a ratio of actual numbers between zero and one, I think the word has no meaning.

        until … plied with ale

        If you’re ever in Beijing, I would be most honored to ply you with much ale!

  4. David Argall says

    The Constitution is a contract, and as such, it’s meaning was set when it was “signed” and has not changed. We can argue who can be consider a “signer” and how much their and other opinions show what the contract meant, but once signed, it was set and only future amendments change the meaning. No theory of a flexible or “evolving” meaning can be valid.

    • I don’t know that the constitution is a contract. We might or might not choose to interpret it as a contract. There may be similarities, but there are a lot of differences between the semantics of constitutional law and contractual obligations. Generally contracts entail promises of specific performance: I will do this, and you will do that; the constitution has little if any of these sorts of provisions. Contracts are usually written with absurdly specific provisions; the constitution is full of vagueness. (I’m not a contract lawyer, so I don’t know how contract law deals with vague provisions.) Contracts usually contain an escape mechanism: if I can’t or don’t want to do what I promise, I can pay the other party money to fulfill that obligation (or go bankrupt); obviously, the constitution has no such provision. Most importantly, contracts are almost always specifically and explicitly assented to; no living person specifically and explicitly assented to the constitution. So, while we might construct a mapping of these ideas, the idea of the constitution as contract is not given.

      Finally, I don’t know what it means for a meaning to be set. I know what it means for words to be set — write them down or add them to the blockchain — but meanings aren’t words. I would have to see a more detailed treatment of what it means for a meaning to be set to find any argument along these lines comprehensible, much less persuasive.

      • A contract can have both precise and vague provisions. the vague ones are often disliked because of the chance of disagreements, but they do exist anyway. In particular they are likely to exist in marriage contracts since most of the details would have to be set by the marrying couple, who may have just met and had little idea of what they wanted. Now marriage contracts often did have provisions for handling the divorce. but many areas did not allow divorce, and so what to do in such a case was often left out.
        And the Constitution was clearly assented to by the states. There was no need for any individual to assent to it. They were all subjects of the states who had full power to assent for them.
        But a contract does have a set meaning. This is usually set by the written word since that is a lot easier to figure out, but the basic need is for a meeting of the minds. Joe offers $1. Sam offers a steak. Any court might find that the terms were not understood by both parties the same way and the contract is void or must be read in a way that it was reasonable for both to agree to it.
        But the contract does not change in meaning. If dollars change from Gold to Silver, Sam can still demand gold dollars.

        • I refer you to my previous point: “So, while we might construct a mapping of these ideas, the idea of the constitution as contract is not given.”

          You have made a mapping. But why should we construct such a mapping in the first place instead of saying that although they share some similarities, a constitution is substantively different from a contract and requires a different mode of interpretation?

          • Basic logic. When one says “substantively different”, one assumes a duty to explain why. Absent such an explanation, there is insufficient reason to say there is a difference.

            • When one says “substantively different”, one assumes a duty to explain why.

              I named several substantive differences. If you disagree and believe those differences are not substantive, you are welcome to make that case. But simply to say that I have not offered an explanation seems to verge towards bad faith.

                • I am not explaining myself carefully enough.

                  We can make two claims about the constitution:

                  (1) The constitution unequivocally is a contract
                  (2) The constitution can be viewed as a contract

                  Creating a mapping from what the constitution is and does to what an ordinary contract is and does supports the second claim, and you have supported that claim well enough.

                  But that you have to create a conceptual map from one to the other almost perfectly undermines the first claim.

                  I need not, for example, create a mapping from my employment contract to the general idea of a contract: my employment contract unequivocally is a contract. It has all the features simpliciter of a contract: specific performance, exchange of value, escape mechanism, and specific assent.

  5. I want to make an note: I am generally unpersuaded by arguments, especially moral or political arguments, from abstract principles. As a scientist and historical materialist, abstract principles come from the concrete, they do not direct or determine the concrete.

    Our legal and political system exists in its specific form. The argument that “we should change the system to fulfill this or that abstract principle” fails to persuade; indeed, any time I see this kind of argument, I suspect a hidden agenda. Why is the abstract principle important? What does it get me that I want and don’t already have?

    Thus, the argument that we shouldn’t let nine unelected justices make new law is unpersuasive by itself. Why shouldn’t we let the Supreme Court make new law? Why shouldn’t they use whatever standard they find expedient to do so? The argument that such an arrangement is “undemocratic” appeals to a rarefied abstract ideal of democracy that has little if anything at all to do with our modern capitalist republic.

    I know we can’t do double-blind randomized control trials, but I’m looking for an argument rooted somehow in actual reality. The court did X because of interpretive schema Y and this was terrific or terrible because reasons. So far in this thread, I have seen no such argument.

    • “I’m looking for an argument rooted somehow in actual reality. The court did X because of interpretive schema Y and this was terrific or terrible because reasons. So far in this thread, I have seen no such argument.” I actually do have an example of that. In Mapp V. Ohio the Supreme Court ruled that the exclusionary rule applies to the states because it is necessary to protect life, liberty, and property as embodied in the 14th amendment. In other words, they took a purpose and consequence based approach to interpreting the constitution. What that means is, evidence obtained by unreasonable searches and seizures cannot be used in criminal courts. I don’t like that because it means that criminals must go free if the police violate their rights in the process of collecting evidence against them. The system that I want is one in which the jury gets to see all the evidence no matter how it was obtained and it is up to them to sort good evidence from bad evidence. No one thought that the 14th amendment prevented any evidence from being used in court when it was ratified. If the courts had taken a more text and history based approach to interpreting the constitution in that case, then it would be a lot easier to get to my preferred system than it is now.

      • Excellent. But your argument hinges on the reader not liking the specific ruling. Since I think Mapp is awesome (personally, I think cops are criminals with badges), I’m unpersuaded.

        I’m a communist, so I know what kind of society I want. What kind of society do you want? This is what, I argue, is really at issue.

      • Nobody thought the 14th Amendment would do that because the 14th amendment doesn’t do that. The 4th Amendment does. The 14th allows it to apply to the states.

        Letting a jury see “all evidence, good and bad” would be pretty much just the same as ignoring the amendment. “Okay, this guy had hard proof of the crime under his bed, but it was obtained by the police kicking every door in the neighborhood down and searching houses without warrants. We don’t like that, but, hey, he obviously did it”. They’re going to convict regardless of how the evidence was obtained. “Well, then punish the cop who did it”. That leads to either no cops, or no cop is willing to try and get ANY evidence for fear of violating the rule, and a lot more criminals go free.

        Nathan already did a good chapter on the exclusionary rule, so look at that if you need a refresher.

        • “Nobody thought the 14th Amendment would do that because the 14th amendment doesn’t do that. The 4th Amendment does. The 14th allows it to apply to the states.” Actually, the court ruled that both the 4th amendment and the 14th amendment do that: “Moreover, our holding that the exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments is not only the logical dictate of prior cases, but it also makes very good sense.” (Mapp V. Ohio. Opinion of the Court, part V. .
          However, it doesn’t really matter because in both cases the outcome is the same and in both cases, no one thought that either amendment required the courts to prevent evidence from reaching the jury when they are ratified. ““Well, then punish the cop who did it”. That leads to either no cops, or no cop is willing to try and get ANY evidence for fear of violating the rule, and a lot more criminals go free.” I do not agree. If the courts would issue injunctions commanding police departments to fire cops who broke the law in the course of collecting evidence, then you would see much better behaved cops with about the same rate of criminal convictions. Its not that hard to get a search warrant and I think that the courts are actually pretty good at differentiating reasonable searches from unreasonable searches. Most importantly, does anyone actually want a system where criminals go free because the police themselves broke the law in the process of collecting evidence against them, even when the evidence is still reliable? If we have to choose between letting ordinary criminals get away with their crimes and letting the police get away with their crimes, then something is very wrong.

          • The Fourth provides the rule and the Fourteenth applies it to the states as it’s part of the due process of law, so yes, it is both. As for “no one thought they would evidence from reaching a jury”, well, they’re intended to do exactly that – to prevent evidence from being collected in the first place. Evidence you never collect will never reach a jury, correct? Do note that improperly collected evidence -can- still be presented to a jury if you can show that you would have eventually collected the evidence properly based upon existing facts – if you had enough evidence to get the evidence, you can bring it in (it’s called inevitable discovery).

            And again, read Nathan’s chapter on it. If you get severely punished for going over a line, you go nowhere near that line, and you get far fewer convictions because you don’t have police taking any chances at all. Not even reasonable ones.

          • I agree with UsaSatsui. I wish to add:

            [D]oes anyone actually want a system where criminals go free because the police themselves broke the law in the process of collecting evidence against them, even when the evidence is still reliable?

            Inevitable discovery notwithstanding, yes, that’s exactly what I want. Private criminals are a far less severe threat than a criminal state. The only way I would endorse Gregory’s position if I knew that the state’s criminality would only be directed at “those people” and never at people like me.

            If we have to choose between letting ordinary criminals get away with their crimes and letting the police get away with their crimes, then something is very wrong.

            This is pretty much the whole idea of limited government. Once we get past Hobbes’ sovereign, the primary thrust of political philosophy has been about balancing the liberties of the citizenry and the power of the state. The question is not whether we should choose but how to choose.

  6. Nathan already did a good chapter on the exclusionary rule, so look at that if you need a refresher.

    Excellent point. Nathan argues (IIRC) that the exclusionary rule actually makes it more likely to convict suspects who are actually guilty precisely because the police have an incentive to go right up to the line of unconstitutionality; if they step over a bit, they just lose that bit.

    And, of course, if the police have absolute power and no restrictions, they will eventually be seen by the population — at least the population they exercise their absolute power over — not as public servants but as agents of tyranny.

Class Participation

___